' RIAZ AHMAD KHAN, J.---This judgment is directed to dispose of Writ Petition No,2345 of 2008.
2. Brief facts of the case are that the petitioner is a tenant under respondents Nos.1 and 2 in the suit shop. The petitioner failed to pay rent for 20 months, so respondents Nos. 1 and 2 filed ejectment petition in the year 2003. Learned Rent Controller, Islamabad accepted the eviction petition and passed eviction order vide judgment dated 31-7-2007. The petitioner feeling aggrieved filed appeal, which was dismissed by the learned Additional District Judge, Islamabad vide judgment dated 16-9-2008. Thereafter, the present writ petition was filed.
3. Learned counsel for the petitioner contended that Islamabad Rent Restriction Ordinance. 2001 was promulgated on 23-1-2001. Under section 1(2), it was provided that the Ordinance shall extend to such urban area of Islamabad Capital Territory and apply to such buildings and rented lands as the Federal Government may, by Notification in the Official Gazette, specify. The official Notification regarding urban area was issued on 1-8-2002 and regarding residential and commercial buildings on 24-6-2004. According to learned counsel for the petitioner, practically the Islamabad Rent Restriction Ordinance, 2001 had become effective on 26-6-2004, whereas the present ejectment petition was filed on 4-2-2003. As such, at the time of filing of rent petition, Islamabad Rent Restriction Ordinance, 2001 was not enforced and the order of learned Rent Controller, Islamabad was coram non judice. Learned counsel in support of his contention referred to an unreported judgment passed in C.P. No, 1434 of 2009. Learned counsel further contended that the question of jurisdiction can be raised at any time and if the basic order is without jurisdiction then the whole edifice would fall to the ground. Learned counsel also submitted that on record the default was not proved, however, it was admitted that since 2008, no rent was paid by the petitioner to the respondent. In this respect, learned counsel submitted that since the record had come to Hon'ble High Court in writ jurisdiction and the learned Rent Controller was not prepared to accept rent, so petitioner/tenant could not pay the rent. Learned counsel for the petitioner in support of his contention relied on PLD 1974 Qeutta 1, PLD 1961 Lahore 601, 2006 SCMR 1630, 1992 SCMR 1149 and 2010 SCMR 1443.
4. On the other hand, learned counsel for the respondent/landlord submitted that the petitioners had not paid rent for the last 9 years and had been trying to prolong the case as much as possible.
5. I have heard learned counsel for the parties and have also perused the record.
6. The Islamabad Rent Restriction Ordinance, 2001 was promulgated through Ordinance IV of 2001.
Section 1 of the Ordinance was as follows:-- "(1) This Ordinance may be called the Islamabad Rent Restriction Ordinance, 2001.
(2) It shall extend to such urban area of Islamabad Capital Territory and apply to such buildings and rented lands as the Federal Government may, by Notification in ihc Official Gazette, specify.
(3) It shall come into force at once."
7 Section 2(K) provided the definition of urban area, which is as "Urban Area" means such area or areas of the Islamabad Capital Territory as the Federal Government may, by Notification in the Official Gazette, specify."
8. As required in section 1(2) as well as section 2(K) of Islamabad Rent Restriction Ordinance, 2001 S.R.O. No,83(Re)/02, dated 19-7-2002 was issued, by virtue of which the urban area of Islamabad was defined. Thereafter, S.R.O. No,538(I)/2004, dated 24-6-2004 was issued, which provided that the Ordinance shall extend to the urban areas specified in the earlier Notification of 9th July, 2002 and apply to all residential and commercial Buildings and rented lands situated in the said urban area
9. Section 7(3) of the Islamabad Rent Restriction Ordinance, 2001 provided that:- "An application under this Ordinance shall he filed before the Controller having jurisdiction over the area where the building or rented land, in respect of which the application is made, is situated: Provided that where there are more than one Controllers for an area, the application shall be made before the Senior Rent Controller who may either deal with it himself or make it over for disposal to other Controller."
10. Keeping in view the above mentioned legal provision it becomes clear that Islamabad Rent Restriction Ordinance, 2001 had become effective on 23-1-2001. On 19th July, 2002 when the first S.R.O. Was issued, the urban area in Islamabad stood defined and all the building situated over the said area were within the territorial jurisdiction of Rent Controller, Islamabad. The subsequent S.R.O.
Which provided the application of Ordinance to residential and commercial buildings was only for clarification and if anybody had any doubt that his building did not fall in the ambit of Islamabad Rent Restriction Ordinance, 2001, he could make a reference to the said S.R.O. The contention of learned counsel for the petitioner that the S.R.O. In respect of building was issued in the year 2004 and from 2001 till 2004 Islamabad Rent Restriction Ordinance, 2001 was not in the field, is not correct. As the said interpretation makes the said Ordinance redundant, where as it was clearly provided in the Ordinance that it shall come into force at once. This interpretation too, would be absurd that the urban area had been defined in 2002, but the property situated over the area were outside the ambit of Islamabad Rent Restriction Ordinance, 2001.
11. Since the present petition was filed in the year 2003, therefore, the learned Rent Controller had the jurisdiction to entertain the same, as by time, the urban area stood defined and admittedly, disputed property fell in the said defined urban area of Islamabad.
12. Admitted position in the present case is that the petitioner has not paid rent w.e.f,.
2008. The contention of learned counsel for the petitioner is that prior to filing of the ejectment petition, rent was paid and there was no default. It was however, admitted that since 2008 the rent has not been paid, as the case had been filed in the High Court and there was no order regarding deposit of rent. This contention is not correct, because even if there was no order from the Court for deposit of rent, that did not mean that tenant was absolved of his duty of paying the rent. The tenant/petitioner could send the rent through post or could deposit the same in the Court.
Furthermore, there is no evidence regarding payment of rent during the pendency of eviction petition before the learned Rent Controller and appeal before the learned Addl. District 3udge. This issue has already been dealt with by the two Courts below and evidence regarding the same can not be discussed in writ jurisdiction.
13. Keeping in view the above mentioned facts, this writ petition is devoid of any force and the same is hereby dismissed with costs.